“Rendition” challenge scuttled

Posted Wed, September 8th, 2010 9:37 pm by Lyle Denniston

Raising further the prospect that the courts may never rule on the legality of the Central Intelligence Agency’s alleged program of “rendition” of terrorism suspects to other countries for questioning and perhaps for torture, the en banc Ninth Circuit Court on Wednesday dismissed the latest challenge. Dividing 6-5, the Court relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a case against a small air flight planning firm that allegedly worked with the CIA to arrange those trips.

Together with the Fourth Circuit Court’s 2007 decision in the case of Khaled el-Masri (which the Supreme Court refused to hear that year, in case 06-1613), the Ninth Circuit’s ruling in Mohamed, et al., v. Jeppesen Dataplan, Inc. (Circuit docket 08-15694) goes far toward insulating the “rendition” program from judicial review — unless the Supreme Court took on that case and reversed the result.

Given how vigorously the Jeppesen case has been pursued by both sides, it seems highly likely that it will be appealed to the Supreme Court.

It was difficult to assess just what dangers to state secrets the Ninth Circuit majority found would arise if the case went further, since the majority said explicitly that it had relied heavily upon classified statements that government officials had submitted in calling for dismissal. It did say it was satisfied that the Obama Administration, which took over the effort to block the case from the Bush Administration, did not claim the “state secrets privilege” in order “to avoid embarrassment or to escape scrutiny” of the once-secret program.

The majority’s broadest holding was that a court rule that supposedly focuses only on whether specific evidence is to be excluded as a trial proceeds can actually be used to end a case before it goes beyond its mere filing and no disputes had yet arisen over what would be allowed in or kept out.

The five dissenting judges argued that this “evidentiary privilege” — traced to the Supreme Court’s 1953 decision in United States v. Reynolds — can never be used to stop a case, barring every legal claim, even before the other side has filed a reply and before one item of evidence has been put forth. The dissenters, however, lost on that point because there were six votes for the majority opinion.

The case, in summary, involves claims by five non-citizens that the Jeppesen Dataplan Inc. contracted with the CIA to provide plans for what a Jeppesen executive later called “torture flights” or “ghost flights.” According to the lawsuit, the company’s executives knew full well that the trips were arranged to transport detainees to foreign countries known for torture and severe interrogation techniques, and thus knew that they would suffer terrible abuse as authorities sought evidence of terrorist acts or links.

Before Jeppesen could even answer the lawsuit’s claims, the U.S. government stepped in, invoked the “state secrets privilege,” and urged the federal courts to end the case at the outset because of its perception that secrets about intelligence-gathering techniques would inevitably come out if the case went forward.

The Circuit Court, in upholding the “state secrets” claim, said it was doing so on the basis of the Reynolds decision’s creation of an evidentiary privilege, rather than a supposedly broader doctrine that a case must be dismissed if the very subject matter of the claims was a government secret. By making what the majority said was a thorough and skeptical review of the two sides’ written and oral arguments on the privilege issue, the majority said it was persuaded that the case could not go even one step further without posing a serious risk of forcing secrets into the open.

In fact, the majority concluded that, even if the detainees’ lawyers could pursue their claims by relying entirely on information that was already public about the “rendition” program — that is, even if those lawyers used only evidence not covered by the “state secrets” protection — the case still could not go forward, because of the risk that secrets might come out either in pre-trial “discovery” or in questioning at the trial.

Because of the public disclosures that have been made about the CIA program, the majority concluded that the fact of that program is no longer a secret. “The program has been publicly acknowledge by numerous government officials including the President of the United States,” the main opinion said.

The majority also found that there simply are no procedures that a District Court judge could adopt that would head off the risk that some secrets would come out. Because the facts underlying the detainees’ claims “are so infused with secrets,” the majority said, “any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets, even if [the detainees] could make a prima face case on one or more claims with non-privileged evidence.”

Circuit Judge Raymond C. Fisher wrote the majority opinion, joined by Chief Judge Alex Kozinski and Circuit Judges Richard C. Tallman, Johnnie B. Rawlinson and Consuelo M. Callahan. Circuit Judge Carlos T. Bea said in his brief separate opinion that he joined the result. While Bea said he woould have based the ruling on a broader ban on trials involving “state secrets,” he specifically supported the majority’s treatment of the Reynolds evidentiary privilege.

Circuit Judge Michael Daly Hawkins wrote the dissenting opinion, joined by Circuit Judges Mary M. Schroeder, William C. Canby, Sidney R. Thomas and Richard A. Paez. The dissenters would have sent the case back to District Court for the judge there to examine whether any part of the case could go forward, with disputes over specific evidence and its admission to be worked out, item by item.

The majority, while seeking to remove the case entirely from the courts, suggested that there might be other remedies for those claiming harms from the CIA program. Among the suggestions were a compensation scheme, some chance to sue the government for damages in a special claims court, and possibly bills in Congress to provide individual compensation to the detainees.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.